Some Gay Marriages Legal in Texas

In Texas law, marriage and gender are a simple affair: Born a man, always a man, never marry another man. Same for a woman. But sexual identity and love in the modern world are rarely so black and white. So what's the state to do when a woman who was born a man wants to marry another woman? It’s a conundrum that dismays social conservatives, confounds county clerks and has advocates for gay and transgender rights calling for clarification. But for all the handwringing by politicians and advocates of all stripes, the saga of two women who married legally last week is infinitely more complicated and agonizing.

by Brandi Grissom
May 14, 2010
5 AM

Ivan Pierre Aguirre

Their love story started with fuschia fingernail polish and black leather.

Therese Bur got her first glimpse of Sabrina Hill — a tall, dark-haired woman decked out in leather gear and flashing those nails — at about 2 a.m. at an Arizona gas station. She was intrigued. One date later, their future was sealed.

That was 17 years ago. “Sabrina was the first person who just listened to who I was and accepted me for who I was,” Bur says. “As strange as we are, that’s important.”

The two women are hardly the typical Texas married couple, yet their union has been blessed by the courts. That's because Hill is a transgender female: She was born with both male and female genitalia, and her father ordered surgery to make her a male. Three decades later, she would surgically reverse his decision. Today, Hill's driver’s license and a judge’s order say she’s a woman — but her birth certificate and now her marriage license say she’s a man. The county clerk in San Antonio gave Hill and Bur a license to wed, putting the couple at the center of a decade-long fight over whether unions like theirs are legal in a state that has overwhelmingly opposed same-sex marriage in polls and at the ballot box.

In a complex and ironic twist of Texas politics, a 1999 conservative court ruling actually sanctions unions like Hill and Bur’s — though they are, by their own definition, a gay married couple. That's because the ruling, which sought to establish gender as unchangeable, established a person's birth certificate as the legal document that defines his or her gender, regardless of later sex-change operations. And so it had the odd side effect of allowing transgender homosexuals to legally marry. It’s a conundrum that dismays social conservatives, confounds some county clerks and has advocates for gay and transgender rights calling for clarification. In perhaps their sole point of consensus on social issues, some conservatives and gay and transgender advocates agree, for different reasons, that people like Hill shouldn’t be allowed to identify as one gender in daily life but another when getting married.

“It’s all screwy, and the reason why it’s screwy is because people are worried about same-sex marriage,” says Houston lawyer Phyllis Randolph Frye, a transgender woman who represented the plaintiffs in the 1999 case.

For all the handwringing by politicians and courts over the anatomy and sexual orientation of married couples in Texas, the saga of Hill and Bur is infinitely more complicated and agonizing. Raised as a boy but never quite man enough for her father, Hill endured decades of abuse at the hands of those she expected to love and protect her. After discovering at age 28 that she had female internal organs, she came to terms with her identity and eventually found someone who accepted and loved her. That person happened to be a woman. In the ultimate irony of an arduous life, Hill is now legally married to a woman solely because of the gender on her birth certificate — the one she could never truly accept.

Frye, a female who was born a male, represented Christie Lee Littleton in the case that led to the court’s 1999 ruling. After having sex-change surgery and legally changing her name from Lee Cavazos to Christie Lee Cavazos, she had married Jonathon Mark Littleton in 1989. He knew about her past, and Frye says the two were a happy couple until Mark died in 1996. Littleton filed a wrongful death suit against the doctors who attended to her husband, but the insurance company in the case argued Littleton could not sue as a surviving spouse because her birth certificate said she was a male. The Littletons' marriage, they argued, was invalid in Texas.

In the late 1990s, when Littleton came before the 4th Court of Appeals of Texas, there wasn’t much case law to guide judges on transgender marriage, so the court looked to a 1970 case from England. In that instance, a transgender woman married a man who later discovered that his new wife was born with male genitalia and sought a nullification. The jury decided that a person’s gender identity could be determined using four criteria, the foremost of which were “chromosomal factors” fixed at birth. Once a male, always a male, the court ruled.

Chief Justice Phil Hardberger, who would later become mayor of San Antonio, wrote the appeals court’s opinion in the Littleton case. The decision, he said, involved a deeper philosophical and legal question than simply determining when a man is a man and a woman is a woman: “Can a physician change the gender of a person with a scalpel, drugs and counseling, or is a person's gender immutably fixed by our Creator at birth?”

“As soon as I … saw that God was in this decision, I knew we were going to lose,” Frye says. Taking a cue from the English case, the court ruled that for purposes of marriage in Texas, a person’s gender was determined at birth. No surgery could change that. “There are some things we cannot will into being. They just are,” Hardberger wrote. “We hold, as a matter of law, that Christie Littleton is a male.”

“The decision essentially said, for the purposes of marriage, Ms. Littleton is a vaginaed male. Stupid,” Frye says.Frye believesthe decision was predicated on the idea that homosexuals who wanted to get married would have sex-change operations so that they could get around laws prohibiting gay marriage. But what kind of crazy person, she asks, would have their body cut up just so they could get hitched? “That just doesn’t make sense, but that’s what people believe of us,” Frye says. She appealed the Littleton decision first to the Texas Supreme Court and then to the U.S. Supreme Court. Both rejected the case, and so it stood. To get a marriage license in Texas, a couple would have to present one birth certificate with an “F” and one with an “M,” no matter what surgical procedures or hormone treatments they'd had or what their driver’s licenses said. The point seemed clear: Marriage in Texas should be between a man and a woman.

Matters of gender, sexuality and love, are not always so clear, though. Less than a year later, a Houston couple armed with “M” and “F” birth certificates and a copy of Hardberger’s ruling went to the Harris County clerk for a marriage license.Robin and Jessica Wicks — the latter a male-to-female transsexual — were turned away by the court clerk. When they sought Frye’s help, she relished the opportunity to rub it in the court’s face, highlighting how “stupid” the decision in the Littleton case had been. “I thought to myself, ‘Why don’t we go to San Antonio and embarrass Hardberger and his friends?’” she says. (Hardberger did not return calls requesting comment for this story.)

Frye and the Wickses held a press conference in front of the Bexar County clerk’s office, just across the street from the courthouse where Hardberger wrote the Littleton decision. The clerk accepted the two women’s birth certificates and gave them a marriage license. Newspapers across the state wrote about the legal gay nuptials. “Even though it looks like a duck and sounds like a duck and their genitals match, they’re opposite sex for purposes of marriage,” Frye says.

Since then, Bexar County Clerk Gerry Rickhoff has issued about two licenses per year to transgender couples, he says. “God has a sense of humor — you know what I mean? So I’m open to variations,” Rickhoff says. As far as he’s concerned, the Hardberger ruling makes granting transgender couples licenses to wed an unambiguous issue. “You are what you are by your birth, and so be it,” he says.

State Rep. Warren Chisum, R-Pampa, the author of the 2005 constitutional amendment that banned same-sex marriage in Texas, believes, as many Texans do, that sinful men and woman choose homosexuality and God chooses gender. So the case of Hill and Bur presents something of a Hobson’s choice. Prohibiting both gay marriage and legal recognition of sex changes means accepting something potentially even less acceptable: the gay marriage of transsexuals.

Although the Wicks and Hill-Bur unions follow the strict interpretation of the court’s ruling, Chisum says it’s clearly not what the justices had in mind. “You can’t have it both ways, and I know that’s what they’re trying to do,” he says. Hardberger, in his ruling, suggested legislators should specify in the law guidelines for transsexuals and marriage. But Chisum says the solution to preventing marriages that look like same-sex unions is not a legislative one. “I can’t write the law for what everybody changes [themselves] to. That would be even more confusing,” he says.

In Chisum’s view, the fix is for judges to stop granting legal recognition to people who have sex-change operations, which would prevent them from getting documents like driver’s licenses that identify them as a gender other than what’s on their birth certificate. “You’re either born as man or you’re born as a woman, and you can’t change that,” he says. Because he doesn’t believe medical procedures can change a person’s gender, Chisum says he considers the Hill-Bur union a heterosexual one. “I’m pretty sure it won’t last long,” he says.

Conservatives like Chisum aren’t the only ones with concerns about transgender marriages. Chuck Smith, director of Equality Texas, a gay rights advocacy group, says using the ruling as a loophole to get a same-sex marriage license is not entirely popular among transgender advocates. Many, he says, believe that people who have sex reassignment surgery should demand to be recognized as the man or woman they have become. “If the state allows us to change gender marker documents, then why don’t we use the most current status as opposed to using that for some things and using an original birth certificate for other things?” Smith asks. Using more than one gender identity depending on the circumstance, he says, just confuses matters.

"This was not a boring issue"

Confused is how Valerie Sanchez, the deputy clerk in El Paso County, felt when Hill and Bur came into the courthouse to apply for a marriage license in April. Hill presented a birth certificate with an “M.” She also gave the clerk a driver’s license that said “F” and a judge’s order changing her name from Virgil to Sabrina. Bur’s birth certificate and driver’s license identified her as a woman, too. The state statute outlining identification documents that can be used to obtain a marriage license doesn’t give priority to any of the numerous types of documentation, and it doesn’t provide direction for clerks in cases in which the gender information on the various documents is conflicting. Could they legally issue a marriage license to two people who seemed to be women based on a birth certificate that indicated one of them was, at least initially, a male? “It's the first time we’ve come across this,” Sanchez says.

At the request of Sanchez’s boss, El Paso County Attorney Jo Anne Bernal asked Texas Attorney General Greg Abbott to weigh in and issue an opinion on which document should take precedence in decisions about granting marriage licenses. “Sometimes we get boring issues,” says assistant county attorney Holly Lytle. “This was not a boring issue.” Abbott hasn’t yet issued an opinion.

Meanwhile, Hill and Bur found out from an El Paso television reporter about the county clerk in San Antonio who gives marriage licenses to transgender couples. “We said, ‘You know what? We’re going to get married, and they can’t stop it,’” Hill says.They cooked up a roast for the road, packed up the car and headed east on Interstate 10. “Monday morning we were at the courthouse,” Hill says. “They were the nicest people in the world.” Not only did the clerks in Rickhoff’s office grant the couple a marriage license, but they waived the 72-hour waiting period and the $40 fee.

For Hill and Bur, getting married was about more than a public declaration of their lifelong commitment to each other or making a statement about equal rights. The two have been living for years in poverty. They live in the house they’ve been building in rural Hudspeth County, just east of El Paso. They can’t afford a hot water heater, and recently they’ve had trouble finding a way to pay Bur’s medical bills. If they were legally married, though, Hill could draw more monthly benefits from the Veterans Administration (she served in the Army), and Bur could get health insurance. After the El Paso clerk turned down their request for a marriage license, Bur says she was despondent, ready to give up. “I thought maybe we should just continue on in poverty,” she says. “It’s not fun, but we can do this.” Hill told her to have faith.

photo by: Ivan Pierre Aguirre

"There’s no easy way out"

Hill knows about faith. That’s what’s kept her fighting through a lifetime of abuse because of her ambiguous gender identity. Hill wouldn’t find out her true nature and history for three decades after her father ordered the surgery that aimed to make her a male. Her inability to live up to the role tormented her father, who in turn tormented her. “In his mind, a proper man could drink anyone under the table, take any woman to bed he wanted to, outfight any other guy,” she says. “This was a guy, so stereotypical, and if I didn’t act like this growing up … then I was beaten within an inch of my life.”

By age 4, Hill says, she knew what she felt inside her mind and body didn’t match what was on the outside. In 1962, when she was 12, teachers at school started sending her to doctors and psychologists. They told her parents Hill might be more girl than boy. “I almost got killed over that one,” she says. Her father was the first person to call her a faggot. Her mother often told her she wished that Hill had died in the car crash that took her younger sister’s life. “There was a lot of abuse.”

When she turned 18, Hill joined the Army. Though her father had died when she was 15, Hill says she remained on a mission to prove to him she could be the man he wanted — even tougher. It wasn’t long, though, before her peers saw something different. In the shower, they could see the scar from her surgery as a baby. When she sang, her soprano voice rang out above the tenors and basses of her fellow soldiers. They harassed her and threatened her with “blanket parties” and gang rape. “I was more afraid of my buddies — [who] I was sworn to lay my life down for — than of going to war,” she says. Hill was medically discharged in 1971, though she later returned as a reservist and directed a communications team.

After her discharge, Hill began seminary school to become a pastor in the Seventh-day Adventist Church. In 1978, during her first year of studies, doctors tested her for kidney stones. An ultrasound didn’t show any, but it did reveal partially developed ovaries and fallopian tubes inside her abdomen. The discovery left her confused again, so she went to the college chaplain. “I said, ‘What do I do here? I know how the Adventist Church feels about women — they’re not supposed to preach at all. Now I’ve got these parts. What do I do?’ I asked him to pray with me and pray for me for divine guidance.” The chaplain told her she’d be kicked out of the missionary school, and she was told to leave within a week.

So she left for Germany to begin her transformation with hormones and therapy. A year later, she returned to the United States, looking much like a woman but still with male genitalia. Rather than having expensive sex reassignment surgery in the United States, Hill went to a Mexican doctor they called "The Butcher." She was so “sick and tired of looking at something that should not be there” that she told him to just lop off the offending appendage. She has been living as a woman since 1979.

When Bur walked into that Arizona gas station in 1993, Hill said she found her greatest defender and friend. In Hill, Bur found acceptance and faith. "Sabrina said, ‘Don’t let anyone tell you you’re not a child of God,’” Bur says. “I was just lucky I had my very own preacher come and put that in my ear.”

Hill and Bur realize they’re not going to make everyone happy with their decision. They never have made everyone happy. “I suppose some people feel like we’re sellouts — ‘Oh, you’re taking easy way out,’” Bur says of the criticism from gay and transgender advocates. “There’s nothing easy about living in Sabrina’s shoes, because she has had prejudice from everyone, including from her parents. There’s no easy way out.”

They aren’t the kind of couple who flaunt their love, Hill says, and they don’t expect others to accept their lifestyle. But when they went into the San Antonio courtroom to exchange vows, Bur and Hill say they were greeted with graciousness. The judge who performed the ceremony even told Hill to kiss her bride. Hill calls it vindication. They spent another day in San Antonio and toured the Alamo before heading back to El Paso and presenting their marriage license to the Veterans Administration. “It lists me as the husband even though, believe me, with my clothes off, I don’t look like a husband,” Hill says. Officials there accepted the license, signed Bur up for benefits, and even congratulated the women. “It should help a lot,” Bur says. “We can finish building our house, and we can put in a hot water heater.”

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